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Evidence - Post-Offence Conduct. R. v. Yabarow
In R. v. Yabarow (Ont CA, 2023) the Court of Appeal reviewed the evidence law of 'after-the-fact conduct' [aka 'post-offence conduct']: i. The General Principles
[23] After-the-fact conduct evidence is a form of circumstantial evidence that encompasses the statements and actions of the accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence; it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106-7, per Martin J. (dissenting, but not on this point).
[24] After-the-fact conduct evidence can be admitted for its relevance on the issue of the accused’s state of mind: Calnen, at para. 119. As this court explained in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42 (“White (2011)”):The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, ‘as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind’. [Citations omitted.] [25] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn. It will be irrelevant to a particular issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct does not allow the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124.
[26] In providing instructions respecting after-the-fact conduct evidence, it is important that the trial judge set out the use to which the evidence can be put and the inferences that are available to the jury: Calnen, at para. 115. Where the conduct is equally consistent with competing inferences, the trial judge should provide a limiting or no probative value instruction to the jury: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145; White 2011, at para. 60.
[27] These instructions are important because after-the-fact conduct evidence poses unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction, informing the jury of other explanations for the accused’s actions: White (1998), at para. 57; White (2011), at para. 24. However, as noted above, some circumstances involving the use of after-the-fact conduct evidence may require a trial judge to do more and counter a specific reasoning risk by providing a limiting instruction: Calnen, at para. 118.
[28] This is often the case where the accused has admitted to the actus reus of the offence and the Crown seeks to rely on the after-the-fact conduct evidence to demonstrate a specific level of intent. In these cases, after-the-fact conduct evidence will often not be relevant to distinguishing between levels of intent, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121. However, there are some cases, such as when an accused’s after-the-fact conduct is out of proportion to an alternative explanation, that the evidence may be relevant in discerning an accused’s level of culpability: see Calnen, at paras. 148-50. . R. v. Gaetan
In R. v. Gaetan (Ont CA, 2023) the Court of Appeal characterizes after-the-fact conduct evidence:[40] Evidence of after-the-fact conduct is a form of circumstantial evidence. It is admissible if it is relevant to a live, material issue, its admission does not offend an exclusionary rule of evidence, and its probative value exceeds its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107 per Martin J. (dissenting, but not on this point). Accordingly, after-the-fact conduct evidence can be admitted when it is relevant to the issue of the accused’s state of mind: Calnen, at para. 119. As this court summarized in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42:The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, “as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind”. [Citations omitted.] [41] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn about the accused’s state of mind. It will be irrelevant to this issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct no longer allows the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124. When this is the case, a trial judge must provide a limiting or no probative value instruction to the jury: White, at para. 60. However, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: Calnen, at paras. 112, 144.
[42] In providing instructions respecting after-the-fact conduct evidence to the jury, it is important that the trial judge sets out the use to which the evidence can be put and the inferences that are available: Calnen, at para. 115. It will be for the jury to determine whether the after-the-fact conduct evidence is related to the crime before them rather than some other reaction or culpable act. This accords with the fact that “it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it”: Calnen, at para. 124. . R. v. Lawlor
In R. v. Lawlor (Ont CA, 2022) the Court of Appeal considers 'after-the-fact conduct' evidence:[107] After-the-fact conduct refers to anything done by the accused after the commission of the offence; it may be put to a variety of uses and its utility is not confined to supporting an inference that the accused “had a guilty mind”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 19, 20. Not all after-the-fact conduct requires a specific instruction or caution: White, at para. 21. As this court noted in R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 58: “[A]s a general rule, evidence of post-offence conduct is not subject to special admissibility rules. Nor does it require that a trial judge caution the jury about its use in proof of guilt”. . R. v. Worrie
In R. v. Worrie (Ont CA, 2022) the Court of Appeal considers 'after-the-fact' conduct evidence:[141] After-the-fact conduct evidence is evidence of “what the accused both said and did after the offence charged in the indictment was allegedly committed”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J., dissenting, but not on this point. It “is circumstantial evidence that may help the trier of fact determine the accused’s culpability for the crime”: R. v. Vorobiov, 2018 ONCA 448, at para. 54, leave to appeal refused, [2019] S.C.C.A. No. 440; and is “generally admissible to show that the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person”: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 51. . R. v. Gough
In R. v. Gough (Ont CA, 2020) the Court of Appeal comments on the admission of evidence of 'post-incident' conduct (aka post-offense conduct):[51] In cases where evidence of post-incident conduct is tendered to prove an essential element of the Crown’s case, its admission is governed by general evidentiary principles. The evidence must be relevant to a material issue at trial. It must be admissible. And its probative value must outweigh its prejudicial effects: R. v. Adan, 2019 ONCA 709, at para. 65.
[52] Determining the relevance of post-incident conduct evidence “is necessarily a case-by-case, ‘fact-driven exercise’”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J. (dissenting, but not on this point). In some cases, this evidence may be relevant to the issue of intent and to distinguish between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). In others, it may be used to prove that a murder was planned and deliberate: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at paras. 14-15; R. v. Poitras (2002), 2002 CanLII 23583 (ON CA), 57 O.R. (3d) 538 (C.A.), at para. 11; R. v. Azzam, 2008 ONCA 467, 91 O.R. (3d) 335, at paras. 46, 49; and R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174, at para. 5.
[53] Despite its reception, evidence of post-incident conduct may pose unique reasoning risks. The separation in time of the events which form the subject-matter of the charge may make it more difficult to ground the inference that the murder was planned and deliberate. The evidence may have a veneer of cogency disproportionate to its true probative value. It may spur speculation, spawn imprecise reasoning and encourage decision makers, such as an untutored jury, to jump to dubious conclusions: Calnen, at para. 116, per Martin J. (dissenting, but not on this point). . R v Kler
In R v Kler (Ont CA, 2017) the Court of Appeal clarifies that the law does not take a categorical approach to post-offence conduct, it's evidentiary treatment all depends on the nature of the conduct:[125] Whether the descriptive used is post-offence conduct or after-the-fact conduct, the designation tells us that what is involved is evidence of things done or said after an offence has been committed: not before and not at the same time, but after. This is circumstantial evidence to which no special rule attaches: R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, at paras. 31, 105, 185.
[126] As with circumstantial evidence generally, jury instructions about the use of evidence of post-offence conduct must not invite the jury to apply the criminal standard of proof to the individual items of evidence: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 42-49.
[127] The courts eschew a list or category approach to determine whether things done or said after an offence has been committed may be relied upon as evidence of post-offence conduct. It all comes down to relevance. Examples of relevant evidence abound, among them, evidence than an accused destroyed or attempted to destroy objects that tended to link him or her to the commission of the offence charged. See e.g. R. v. Vant, 2015 ONCA 481 (CanLII), 324 C.C.C. (3d) 109, at para. 129.
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